The opinion of the court was delivered by: HANNUM
The defendant was convicted on two (2) counts of distributing a controlled substance in violation of 21 U.S.C. § 841. Thereafter, an appeal was filed in the United States Court of Appeals for the Third Circuit, 635 F.2d 1089, in which it was contended, inter alia, that reversible error was committed when this Court denied the defendant his right to make the last argument to the jury as prescribed in Local Rule 13 of the Eastern District of Pennsylvania. Although whether the local rule was in effect at the time of the trial was then in question, the Third Circuit held, with the benefit of some hindsight, that the defendant did indeed enjoy the right afforded in the local rule, that the right was violated per the Court's ruling at trial and that, as a result, reversible error was committed. The Third Circuit remanded the case for the conduct of a retrial. On January 28, 1981, a pretrial conference was held at which time a February 4, 1981 pre-trial motion filing deadline was set as well as a March 2, 1981 trial date. Presently before the Court are two (2) motions filed by the defendant on February 20, 1981 and February 23, 1981, respectively: 1. Motion For Recusal Of Trial Judge and 2. Motion To Dismiss The Indictment. For the reasons fully set forth below, both motions will be denied.
Motion For Recusal Of Trial Judge.
The defendant bases his motion for recusal on the provisions of F.R.Crim.P. 32(c)(1):
The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time. (Emphasis added).
and the pronouncement in Gregg v. United States, 394 U.S. 489, 491-92, 89 S. Ct. 1134, 1136-37, 22 L. Ed. 2d 442 (1969):
"Rule 32 is explicit. It asserts that the "report shall not be submitted to the court... unless the defendant has pleaded guilty or has been found guilty.' .... Moreover, the rule must not be taken lightly.... To permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant's guilt or innocence or who will preside over a jury trial would seriously contravene the rule's purpose of preventing possible prejudice from premature submission of the presentence report."
The defendant has not alleged any bias or prejudice but rather only that the bare language of the criminal rule and the pronouncement in Gregg compel recusal lest reversible error occur should the defendant be found guilty and sentenced after a retrial before this Court. Citing United States v. Park, 521 F.2d 1381 (9th Cir. 1975).
As noted earlier, the Court will decline the defendant's urgings. Both for reasons of interpretation and judicial economy, the Court believes it incumbent upon it to conduct this retrial. F.R.Crim.P. 32(c)(1) and the Gregg interpretation of it do not comprise some broad and all-encompassing preclusion as the defendant suggests. The clear language of the rule and the facts existent in Gregg require limitations to the blind reliance requested by the defendant.
A close interpretation of the language of F.R.Crim.P. 32(c)(1) and Gregg reveals that the rule prohibiting pretrial examination of presentence reports is peculiar to the conduct of first trials. United States v. Park, supra is not inapposite. In both the above-cited cases, the Court either allegedly or in fact reviewed the presentence reports prior to the first trial of the defendant. If such an allegation is established, F.R.Crim.P. 32(c)(1) has clearly been violated inasmuch as no plea of guilty or nolo contendere or finding of guilty preceded the review of the presentence reports. The inclusion of the language "unless the defendant has pleaded guilty or nolo contendere or has been found guilty," however, belies the fact that it is quite proper to conduct a trial of a criminal case subsequent to a legitimate review of a presentence report upon the occurrence of one of these conditions precedent. Case law exists in which a criminal trial has been conducted before a judge who has properly but perhaps prematurely reviewed a presentence report as a result of the entrance and subsequent withdrawal of a guilty plea. See, e.g., United States v. Clark, 605 F.2d 939 (5th Cir. 1979); United States v. Lyon, 588 F.2d 581 (8th Cir. 1978); United States v. Montecalvo, 545 F.2d 684 (9th Cir. 1976); United States v. Bourque, 541 F.2d 290 (1st Cir. 1976). So too does case law abound in which the same judge presides over a retrial after reversal and remand the identical situation sub judice. United States v. Partin, 552 F.2d 621, 637 (5th Cir. 1977); United States v. Hernandez-Vela, 533 F.2d 211, 213-14 (5th Cir. 1976); Smith v. United States, 360 F.2d 590, 592 (5th Cir. 1976).
The essence of all of these cases that F.R.Crim.P. 32(c)(1) does not preclude a trial judge from hearing a retrial after having reviewed a presentence report no doubt emanates from a panoply of various principles. The Third Circuit recognized the application of the rule and these principles when it stated as follows: